Prosecutors in the case against a former Keene man accused in a fatal 1989 fire plan to appeal a ruling that could damage their case.
David B. McLeod, 55, most recently of Sacramento, Calif., was charged in June 2010 with four counts of second-degree murder for the 1989 deaths of newlyweds Carl R. and Lori M. Hina, their 4-month-old daughter Lillian, and Carl’s 12-year-old daughter Sara Jean.
The case — originally slated for trial in August — has been delayed twice and will remain on hold indefinitely while the N.H. Supreme Court considers whether to hear an appeal from the N.H. Attorney General’s Office of a pre-trial ruling by Judge Marguerite L. Wageling, who is presiding over the case.
In the meantime, defense attorneys for McLeod have filed a motion requesting he be allowed bail while the Supreme Court considers the appeal.
Since he was extradited to New Hampshire from California in July 2010 he has been held without bail at the Cheshire County jail in Keene.
Wageling ruled in August against allowing three fire science experts from testifying they believe the fatal fire on High Street was caused by arson. Assistant N.H. Attorney General Janice K. Rundles said Monday prosecutors plan to appeal.
Wageling wrote that the experts relied heavily on statements made after the fire by Sandra Walker, in whose apartment the fire started and who died in 2005.
Because Walker is dead and could not be called to the stand to be cross-examined by defense attorneys, use of her statements in court would violate McLeod’s constitutional right to confront an adverse witness, Wageling said.
Prosecutors filed a motion for reconsideration, arguing that Wageling’s ruling incorrectly interpreted the law and saying the loss of expert witnesses to testify that the fire was arson would damage their case.
McLeod’s public defender, Caroline L. Smith, objected, saying the law was properly applied.
In mid-October, Wageling shot down the motion to reconsider, leaving prosecutors one month to decide if they’d take the case to a higher court.
After the prosecution files the motion to appeal, the highest court will first review the case to see whether it will hear it.
If so, both sides will file briefs and oral arguments will be scheduled.
It’s a process that could take several months, which Smith has argued in a motion is too long to hold McLeod without bail.
In an Oct. 17 motion, Smith requested bail be set in the case “in an amount that is within the defendant’s means so that he may be released from jail pending appeal,” according to court documents.
Smith argues McLeod was on disability before his arrest in 2010 and does not pose a flight risk if released while the appeal is considered.
State law requires a defendant charged with a crime punishable by life in prison not be allowed bail.
But in her motion, Smith writes that since the state has indicated it will have difficulty proving its case if it can’t call its expert fire science witnesses, McLeod should be released on bail pending a ruling by the Supreme Court.
Prosecutors have objected.
A bail hearing in the case has been scheduled for Dec. 16 in Hillsborough North Superior Court in Manchester.